Pruitt v. Genentech, Inc.

Filing 18

ORDER granting in part and denying in part 4 Motion to Dismiss and Motion to Strike signed by District Judge John A. Mendez on 8/23/17. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY PRUITT,

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2:17-cv-00822-JAM-AC

Plaintiff,
v.

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No.

GENENTECH, INC., a Delaware
Corporation; and DOES 1-10,
inclusive,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
GENENTECH’S MOTION TO DISMISS &
MOTION TO STRIKE

Defendants.

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Plaintiff Timothy Pruitt brings a number of state and

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federal claims against Genentech, Inc., (“Genentech”) and DOES 1-

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10 (collectively, “Defendants”).

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two of those claims, moves to strike Pruitt’s injunctive relief

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request, and moves to strike all DOE defendants.

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4.

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everything else.

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below, the Court GRANTS in part and DENIES in part Genentech’s

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motion. 1

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Genentech now moves to dismiss

Mot., ECF No.

Pruitt concedes striking DOE defendants, but opposes
Opp’n, ECF No. 12.

For reasons explained

This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for July 11, 2017. In deciding this motion, the Court
takes as true all well-pleaded facts in the operative complaint.
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I.

BACKGROUND

Pruitt sues Defendants for allegedly violating several state

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and federal employment laws.

See generally Compl., ECF No. 1

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(attached to Notice of Removal as Ex. A).

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of action.

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Housing Act (“FEHA”) violations, including disability

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discrimination (claim one), race discrimination (claim two), and

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retaliation (claim three). See id. at 9-10.

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California whistleblower claim (claim four).

He brings ten causes

The first three concern various Fair Employment and

Pruitt also brings a
See id. at 11.

He

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sues Defendants for two California Family Rights Act (“CFRA”)

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violations—interference (claim five) and retaliation (claim six).

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See id. at 11-12.

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Defendants for Federal and Medical Leave Act (“FMLA”)

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interference (claim seven) and retaliation (claim eight).

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id. at 12-13.

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of public policy (claim nine).

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Pruitt sues for defamation (claim ten).

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Pruitt also brings federal claims, suing

See

Pruitt sues for wrongful termination in violation
See id. at 13.

And, finally,

See id. at 13-14.

Now before the Court is Genentech’s motion to dismiss

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Pruitt’s whistleblower and defamation claims, to strike Pruitt’s

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injunctive relief request, and to strike references and

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allegations concerning DOE defendants.

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II.

See generally Mot.

OPINION

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A.

Whistleblower Claim

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Pruitt’s whistleblower claim against Genentech alleges

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Genentech retaliated against him for alerting human resources

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(“HR”) about Genentech employees’ discriminatory conduct—

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specifically, that his supervisors Dan Williams and Steve Graeff

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discriminated against him.

See id. ¶¶ 11, 13, 24.
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Genentech moves to dismiss this claim for two reasons.

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First, to the extent Pruitt’s claim arises from any failure to

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promote him, Genentech contends this is time barred.

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ECF No. 14, at 1-3.

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from his termination, Genentech argues Pruitt fails to state a

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claim.

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arguing that the limitations period is 3 years, making his

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whistleblower claim timely.

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Second, to the extent Pruitt’s claim arises

See Mot. at 3-4

1.

See Reply,

Pruitt opposes Genentech’s motion,

See Opp’n at 6.

Statute of Limitations

A plaintiff must file his Labor Code § 1102.5 claim within

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one year of the retaliatory act.

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LLC, No. CV 16-5241 DMG (ASx), 2017 WL 1130165, at *4 (C.D. Cal.

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Mar. 16, 2017) (citing Wilden v. Cty. of Yuba, No. 2:11-cv-

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02246-JAM-GGH, 2012 WL 12526820 (E.D. Cal. Mar. 1, 2012).

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Because Pruitt seeks civil penalties, see Compl. at 14, the one-

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year statute of limitations applies, as this is an “action upon

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a statute for a penalty,” Cal. Civ. Proc. Code § 340(a).

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also Cal. Lab. Code § 1102.5(f).

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his whistleblower claim—failure to promote and termination.

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Compl. ¶ 56.

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period.

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See Delgado v. MillerCoors

See

Pruitt alleges two bases for
See

Each must fall within the one-year limitations

As to the failure-to-promote basis for Pruitt’s

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whistleblower claim, it is time barred.

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Genentech failed to promote him in December 2015, see id. ¶¶ 20,

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56, so he had until December 2016 to bring this claim.

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waited until March 10, 2017 to file suit, see id. at 1, more

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than one year after the alleged retaliatory act, rendering the

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claim time barred, see Delgado, 2017 WL 1130165 at *4.
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Pruitt alleges

But he

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To the extent Pruitt’s whistleblower claim arises from his

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termination, it falls within the limitations period.

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terminated Pruitt on July 27, 2016, see Compl. ¶¶ 27, 56, so he

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had until July 27, 2017 to file this claim.

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10, 2017.

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allegations supporting this claim—conversations Pruitt had with

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HR—are too remote because they occurred several years before

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Pruitt filed this suit.

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this argument, for the statute of limitations runs from the time

See generally Compl.

Genentech

He did so on March

Yet Genentech maintains the

See Mot. at 4, n.1.

The Court rejects

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of the alleged retaliatory act—not from the alleged protected

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activity.

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termination on July 27, 2016 is the operative date.

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See Delgado, 2017 WL 1130165 at *5.

Pruitt’s

In sum, to the extent Pruitt’s whistleblower claim derives

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from any failure to promote, the Court finds it is time barred

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and dismisses it with prejudice.

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basis for Pruitt’s whistleblower claim, the Court finds it is

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timely.

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2.

But, as to the termination

Stating a California Whistleblower Claim

While Genentech’s statute of limitations argument fails in

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part, Genentech contends that this claim should still be

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dismissed because Pruitt has not sufficiently stated a

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whistleblower claim.

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engaged in a protected activity, (2) [his] employer subjected

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[him] to an adverse employment action, and (3) there is a causal

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link between the two.”

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05469-SI, 2017 WL 713322, at *11 (N.D. Cal. Feb. 23, 2017).

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Genentech contends Pruitt’s claim is impermissibly vague.

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Mot. at 3-4.

To do that, Pruitt “must show (1) [he]

Derby v. City of Pittsburg, No. 16-cv-

See

Pruitt maintains his claim is sufficiently pled.
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See Opp’n at 4-6.

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Pruitt.

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As discussed below, the Court agrees with

a.

Protected Activity

“To constitute a protected activity pursuant to section

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1102.5, a disclosure must be ‘to a person with authority over

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the employee or another employee who has the authority to

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investigate, discover, or correct the violation or

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noncompliance.’”

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MDD, 2017 WL 1354787, at *9 (S.D. Cal. Apr. 12, 2017).

Smiley v. Hologic, Inc., No. 16-cv-158-WQHHR

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representatives are persons of authority.

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Inst., No. 15-cv-05457-LHK, 2016 WL 3965167, at *4 (N.D. Cal.

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July 24, 2016) (concluding plaintiff engaged in protected

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activity when she told HR personnel “she was not being paid for

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her medical assistance work, in violation of Cal. Labor Code

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section 1194”).

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See Evenfe v. Esalen

Genentech says the basis for Pruitt’s whistleblower claim

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is unclear, highlighting Pruitt’s failure to specify “who, when,

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and what he allegedly ‘disclosed’ to an individual covered by

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section 1102.5.”

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informed HR about being discriminated against and this violated

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federal and state law.

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See Mot. at 4.

Pruitt disagrees, arguing he

See Opp’n at 5.

The Court agrees with Pruitt, but for slightly different

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reasons.

He identifies several federal and state anti-

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discrimination and medical leave laws he claims Genentech

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violated.

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(FMLA).

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whistleblower claim.

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Genentech’s human resources representative . . . that he felt

See Compl. ¶¶ 33-53 (FEHA), 60-73 (CFRA), 74-86
Pruitt also delineates the factual basis for his
See, e.g., Compl. ¶ 11 (“Pruitt told

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Mr. Williams was holding him to a different standard based on

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his race.”); ¶ 13 (“Pruitt expressed his concern to human

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resources that the performance review was in retaliation for his

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prior [race] discrimination complaint against Mr. Williams.”);

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¶ 24 (“In early June 2016, Mr. Pruitt complained to human

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resources that he was being discriminated against.

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the Senior Manager of Employee Relations that Mr. Graeff

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subjected his work to more scrutiny and held him to a higher

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standard than his white coworkers.”).

[He] told

These allegations show

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Pruitt told HR about alleged FEHA race discrimination and

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retaliation violations.

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In his opposition to this motion, Pruitt attempts to add

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additional legal bases for his whistleblower claim.

See Opp’n

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at 5 (citing Title VII, CFRA, and FMLA).

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appear in his complaint, which mentions only FEHA discrimination

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and retaliation violations; it says nothing about Pruitt

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informing HR about Genentech’s alleged medical leave violations.

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Pruitt cannot now, in his opposition brief, add more legal bases

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for his whistleblower claim.

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CV F 10-1628 LJO SMS, 2011 WL 284971, at *18 (E.D. Cal. Jan. 26,

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2011) (“[A] complaint is judged based on its allegations, not

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new facts or claims raised in [a Rule 12(b)(6)] opposition.”).

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In short, the Court finds Pruitt engaged in protected

None of these bases

See Arres v. City of Fresno, No.

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activity, but only as to the alleged FEHA race discrimination

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and retaliation violations Pruitt reported to HR.

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VII, CFRA, and FMLA violations Pruitt listed in his opposition

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brief cannot comprise the legal basis for his whistleblower

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claim.

The Title

See Thomsen v. Sacramento Metro. Fire Dist., No. 2:09–
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CV–01108 FCD/EFB, 2009 WL 8741960, at *16 (E.D. Cal. Oct. 20,

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2009).

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b.

Adverse Action

Pruitt sufficiently alleges an adverse action.

He says

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Genentech terminated him, see Compl. ¶¶ 27, 56, and termination

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is an adverse employment action, see Ferretti v. Pfizer Inc.,

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No. 11-CV-04486, 2013 WL 140088, at *10 (N.D. Cal. Jan. 10,

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2013).

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c.

Causal Link

That leaves the third and final element of a whistleblower

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claim: A causal link between protected activity and adverse

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action.

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Pruitt cannot establish this connection because years passed

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between his 2012 reports to HR and his 2016 termination.

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Reply at 2 n.2.

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before Genentech terminated him, so he has alleged a sufficient

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causal connection.

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See Derby, 2017 WL 713322 at *11.

Genentech contends

See

Pruitt emphasizes he spoke to HR one month

See Opp’n at 5.

The law supports Pruitt’s position.

“The causal link may

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be established by an inference derived from circumstantial

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evidence, ‘such as the employer’s knowledge that the [employee]

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engaged in protected activities and the proximity in time

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between the protected action and allegedly retaliatory

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employment decision.’”

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has done just that.

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Pruitt, he, once again, told HR his managers were discriminating

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against him.

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Arkens does not alter this Court’s conclusion: There, the court

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held that 14 months’ time between protected activity and an

Smiley, 2017 WL 1354787 at *8.

Pruitt

One month before Genentech terminated

See Compl. ¶¶ 24, 27.

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Genentech’s reliance on

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adverse action was too remote to establish a causal link, Arkens

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v. Cty. of Sutter, Civ. No. 2:16-951 WBS KJN, 2016 WL 5847036,

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at *16 (E.D. Cal. Oct. 6, 2016); here, only one month passed,

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see Compl. ¶¶ 24, 27.

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is too remote.

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Genentech cites no case showing one month

Equally important, Genentech was well aware of Pruitt’s

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reports to HR.

See, e.g., Compl. ¶ 12 (after receiving reports

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from Pruitt that he was being racially discriminated against, an

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“[HR] employee directed [Dan] Williams to amend the performance

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counseling document”).

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“[e]ssential to a causal link is evidence that the employer was

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aware that the plaintiff had engaged in the protected activity.”

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Smiley, 2017 WL 1354787 at *8.

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the meeting when Graeff terminated Pruitt.

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See also Ferretti, 2013 WL 140088 at *10 (“[I]t is sufficient

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that at least one of the persons responsible for making each

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adverse employment decision [knew] Plaintiff had engaged in

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protected activity.”).

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This solidifies Pruitt’s position, for

Additionally, Williams attended
See Compl. ¶ 27.

In sum, Pruitt sufficiently alleges protected activity,

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adverse action, and causation, putting Genentech on notice of

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the whistleblower claim against it.

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Genentech’s motion to dismiss Pruitt’s § 1102.5 whistleblower

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claim, however, this claim arises only from Pruitt’s termination

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(and not any alleged failure to promote) and only the alleged

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FEHA violations reported to HR—race discrimination and

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retaliation—comprise the basis for this claim.

The Court therefore denies

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B.

Defamation Claim

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Pruitt also sues Genentech for defamation, contending
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Genentech defamed him by saying he stole a sandwich.

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at 8-9, 13-14.

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Pruitt fails to meet defamation’s heightened pleading standard.

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See Mot. at 5-6.

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“substance of” the allegation and has done that.

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9.

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See Compl.

Genentech moves to dismiss this claim, arguing

Pruitt asserts he need only pled the
See Opp’n at

To state a defamation claim, a plaintiff must show the

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defendant made a false and unprivileged publication to a third

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person that had a tendency to injure the plaintiff with respect

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to his occupation, office, profession, trade, or business.

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Williams v. Salvation Army, No. 2:14–cv–06138–ODW(PJWx), 2014 WL

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6879936, at *2 (C.D. Cal. Dec. 4, 2014) (citing Cal. Civ. Code

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§§ 44-47).

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must be specifically identified, and the plaintiff must plead

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the substance of the statement.’”

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Elevator Corp., No. C-05-3539 EMC, 2006 WL 680553, at *5 (N.D.

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Cal. Mar. 14, 2006) (citation omitted).

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complaint must reference “the speakers of the defamatory

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communications, the recipients, the timing, or the context in

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which they were made, sufficient to provide [the defendant]

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notice of the issues” to prepare a defense.

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680553 at *6 (citing Okun v. Superior Court (Maple Properties),

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29 Cal. 3d 442 (1981)).

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See

“Under California law, the ‘defamatory statement

Jones v. Thyssenkrupp

This means the

See Jones, 2006 WL

Pruitt’s complaint lacks the requisite specificity.

For

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starters, the factual basis for his defamation claim is unclear.

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Pruitt cites two contexts in which Genentech allegedly made the

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defamatory comment: During a meeting with Graeff and Williams,

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see Compl. ¶ 26, and at some unknown time by some unidentified
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employee to some other unidentified employees some time before

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Genentech terminated him, see id. ¶ 29.

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confusion as to which context Pruitt’s defamation claim is

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grounded upon, his complaint contains other fatal defects.

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instance, Pruitt makes conclusory allegations.

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(“Defendant made this statement maliciously, out of hatred or

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ill will toward Plaintiff . . . . This statement was a

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substantial factor in causing harm to Plaintiff’s trade,

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profession, occupation, and/or reputation.”).

Notwithstanding the

For

See id. ¶¶ 94-95

Conclusory

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allegations do not satisfy defamation’s heightened pleading

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standard.

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See Williams, 2014 WL 6879936 at *2.

Moreover, Pruitt’s use of the phrase “on information and
belief” raises a red flag:
Where, as here, some of the allegations are
qualified with the phrase and others are
not, a reasonable inference arises that it
is intended as caveat, to provide additional
protection should plaintiff be unable to
prove any of the factual allegations. It
thus creates a further inference that
plaintiff likely lacks knowledge of
underlying facts to support the assertion,
and is instead engaging in speculation to an
undue degree.

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Delphix v. Actifo, Inc., No. C 13–4613 RS, 2014 WL 4628490, at

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*2 (N.D. Cal. Mar. 19, 2014) (patent infringement action).

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Pruitt uses this phrase for his defamation claim, see Compl.

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¶ 29, but not for any other claim.

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“[o]n information and belief . . . Defendant told several of its

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employees that it terminated Mr. Pruitt for stealing,” raises

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questions: Who made the statement? Who heard it?

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Indeed, the key allegation,

When?

Additionally a conditional privilege presumptively applies
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to this claim.

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common interest in preserving morale and job efficiency, an

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employer’s statements regarding the reasons for termination of

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another employee generally are privileged.”

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6879936 at *3 (citation omitted).

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privilege, a plaintiff must specifically allege malice,” meaning

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he “must allege detailed facts showing defendant’s ill will

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towards him.”

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so.

“Because an employer and its employees have a

Williams, 2014 WL

“To defeat this conditional

Jones, 2006 WL 680553 at *6.

Pruitt has not done

Instead, he merely alleges “Defendant told several of its

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employees that it terminated Mr. Pruitt for stealing,” Compl.

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¶ 29, and adds the conclusory allegation that “Defendant made

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this statement maliciously, out of hatred or ill will toward

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[him],” Id. ¶ 94.

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This does not suffice.

In short, Pruitt fails to provide Genentech adequate

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“notice of the issues” to prepare a defense, and so fails to

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state a claim.

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why defamation, a “historically unfavored” action, has a “more

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stringent” pleading standard.

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is not convinced there are no set of facts upon which Pruitt

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could state a defamation claim and, so, dismisses it with leave

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to amend.

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2001).

Jones, 2006 WL 680553 at *6.

See id.

This illustrates

Nevertheless, the Court

See Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

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C.

Injunctive Relief

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Pruitt seeks injunctive relief, Compl. at 14, but Genentech

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asks this Court to strike the request, contending that Pruitt

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lacks Article III standing to make it, see Mot. at 6.

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believes a recent California Supreme Court case gives him the

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requisite standing.

Pruitt

See Opp’n at 10 (citing Harris v. City of
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Santa Monica, 56 Cal. 4th 203 (2013)).

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bring a claim for relief, a plaintiff must show that [he] has

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(1) suffered an injury that (2) was caused by the defendant and

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(3) is likely to be redressed by the relief [he] seeks.”

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v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1036-37 (9th Cir.

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2006).

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redressability prong.

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“To have standing to

Walsh

The parties dispute whether Pruitt has met the

The Court concludes Pruitt has not.

The Ninth Circuit

makes clear a former employee lacks standing to seek injunctive

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relief when the complaint says nothing about the plaintiff’s

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intent to return to work.

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Gate Gourmet, Inc., 114 F. Supp. 3d 781, 818 (N.D. Cal. 2015)

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(“[A] former employee lacks standing to seek injunctive relief

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on an employment discrimination claim—at least where he or she

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is not seeking reinstatement—because the former employee ‘would

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not likely benefit’ from any such relief.”) (citing Walsh, 471

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F.3d at 1037).

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See id. at 1037.

See also Achal v.

Pruitt, however, argues that this Court should not read

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Walsh so broadly.

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case here, arguing that Walsh is limited to ADA claims, whereas

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this case concerns FEHA claims, and so is more analogous to

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Harris.

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He attempts to distinguish Walsh from the

See Opp’n at 10.

Pruitt is mistaken.

Harris simply says “a court may grant

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injunctive relief where appropriate to stop discriminatory

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practices.”

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that FEHA allows a court to order injunctive relief does not

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alter the standing analysis.”

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This makes sense, for the Ninth Circuit in Walsh “held that a

Id. at 234 (citation omitted).

But “[t]he fact

Achal, 114 F. Supp. 3d at 818.

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former employee lacks standing to seek injunctive relief on an

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employment discrimination claim, see id. (emphasis added), which

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encompasses both ADA and FEHA claims, as both are employment

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discrimination claims.

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Article III standing, Pruitt’s distinction between ADA and FEHA

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claims is a distinction without a difference.

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therefore strikes Pruitt’s injunctive relief request.

Stated another way, for purposes of

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D.

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Pruitt also sues DOE defendants.

The Court

DOE Defendants
See Compl. at 1.

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Genentech asks this Court to strike “references and allegations

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related to Doe defendants.”

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oppose.

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defendants, dismissing them without prejudice.

See Opp’n at 11.

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See Mot. at 6.

Pruitt does not

The Court therefore strikes these

III.

ORDER

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For the reasons set forth above, the Court GRANTS in part

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and DENIES in part Genentech’s motion to dismiss and motion to

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strike.

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If Pruitt elects to amend his complaint, he shall file his

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first amended complaint within twenty days from the date of this

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Order.

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amended complaint.

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twenty days thereafter.

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No new causes of action may be included in the first
Genentech’s responsive pleading is due within

But if Pruitt elects not to amend his complaint, Genentech

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shall file its answer to the complaint within thirty days from

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the date of this Order, and the case will proceed on the

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following remaining claims:

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1.

FEHA disability discrimination (claim one);

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2.

FEHA race discrimination (claim two);
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3.

FEHA retaliation (claim three);

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4.

§ 1102.5 whistleblower claim, limited to Pruitt’s

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termination after complaining to HR about Genentech’s alleged

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FEHA race discrimination and retaliation violations (claim four);

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5.

CFRA interference (claim five);

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6.

CFRA retaliation (claim six);

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7.

FMLA interference (claim seven);

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8.

FMLA retaliation (claim eight); and

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9.

Wrongful termination in violation of public policy

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(claim nine).

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IT IS SO ORDERED.
Dated:

August 23, 2017

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